Too much, or not enough?

With shale oil deposits bigger than the Bakken sitting beneath its fertile soil—and oil companies that are eager to get their hands on it—Central California is poised to become the site of the country’s newest energy boom. Last month, the state auctioned off 18,000 acres of leases in southern Monterey County. A week later, California’s regulators released an early version of fracking regulations, and are now taking public comment.

As yet another state wades into the national debate over where and how shale oil and gas development should happen, it seemed like a good time to compare how states are regulating the fracking-enabled boom. Obviously I’m not the only one with that idea: Resources for the Future, the Washington D.C.-based non-partisan, non-profit environmental think tank, has been working on a series of maps that do just that, with a focus on shale gas. I asked Nathan Richardson, a lawyer and researcher at RFF who helped create the maps, about how to use them and what they can tell us about oil and gas regulation.

The interview has been edited and condensed for clarity.

HCN: What should people be looking for when they’re using the maps and trying to compare how different states deal with oil and gas drilling?

Richardson: For us, the number one thing that has really jumped out is … a large degree of differences among states. So for example, some states will require a much greater setback between wells and water sources or buildings than another state will. There’s also great heterogeneity in terms of what tools the states are using. Some of them have regulations like I just described (with setbacks), which is a really specific command and control limit. Others will use performance standards where you have to make the well far enough away from a water source that it’s safe, and it’s the well operator’s job to prove it’s safe. Others will regulate by the permit process; there’s an inspector that comes out and checks permit application and says, ‘I think this is safe,’ or, ‘I think this isn’t safe.’ There’s nothing specifically wrong with any of these approaches. States have made very different choices about what kinds to use. And once they do make a choice, they’re very different in terms of the stringency of the regulations they have.

HCN: I know you said regulations are really different from each other, but is there one regulation that is highly variable state to state?

NR: Let’s take setback restrictions from buildings. So, every well that an operator constructs, in many states, has to be sited a certain number of feet away from occupied buildings. Most states have some kind of rule that requires this. There are eight states that have at least some fracking … that don’t regulate (setbacks at all and) some of them have significant shale gas operations, like Oklahoma. Among the other states that do have (setback) regulation, there’s still pretty big differences. In West Virginia, you have to build a minimum of 625 feet away another building, but in other states like New York, that can be as close as 100 feet away from the building.

HCN: Are there areas where states are more similar?

NR: The disclosure of fracking fluids is moving towards significant uniformity. There’s some important technical differences among states: how much they protect trade secrets, how much disclosure has to happen, but a few years ago, relatively few states required disclosure and now most states do.

HCN: What about local regulations? How are communities dealing with shale gas drilling versus states?

NR: As a lawyer, this is interesting to me because there’s a separation of powers issue between local governments and state governments, which differs by state. We had a really interesting conversation with someone from the Pennsylvania Department of Environmental Quality, and if you’ve talked to someone from Pennsylvania you know that they’re a commonwealth, not a state. And to me and you, that doesn’t mean anything. Well, it does mean something in the Pennsylvania state constitution. It means that their municipalities have significantly more power than most do in other states and that becomes particularly relevant here.

I know there’s a lot of litigation (over state versus local control) in other states, so it’s a real source of tension. There’s a recent court ruling that refused to overturn local municipalities’ authority over the shale gas process. I mean, there’s deeper philosophical questions about which level should be regulating these things.

HCN: What do you think?

NR: Well I want to be clear that whatever my feelings are on this, it’s separate from the data collection and research that we’re doing here. (Economists would say): you should have the level of government regulate the problem that’s about the same size as the zone of risk, the people that might be hurt. And I think for me, it means that a lot of the risks you see from shale gas development, ground water contamination especially, surface water contamination, local air pollution, the state’s probably about the right level (for regulation). But some risks, like methane and carbon, I’m not saying the federal government necessarily needs to regulate, but the federal government will probably be the most effective body to do so. And there are others where local government seems entirely reasonable, (like) siting of wells.

HCN: How about banning oil and gas drilling outright? Here in Colorado, the city of Longmont did that recently and it didn’t go over well with the state and the industry.

NR: Right. That’s a tough question. On the one hand, it’s hard to argue with popular sovereignty. If the people don’t want it…(trails off). On the other hand, you’re talking about resources, some of which belong to the state. So if the state doesn’t like it … generally the rule is, sorry local governments. And if that’s true, then the solution for local communities is, if you don’t like that then vote for someone in your state legislature that’s going to either grant local jurisdiction that power or support a state-wide ban.

HCN: Are there any sort of oddities that stood out to you after you did the maps?

NR: One that immediately comes to mind is, look at our maps on severance taxes and look how different the tax rates are for these resources when they come out of the ground. This range seems huge.

HCN: Have you noticed if different regions care more about protecting or regulating certain things?

NR: Different parts of the country are going to care about different resources they have. The best example is surface water versus ground water. In New York, Ohio and Pennsylvania there’s a ton of rainfall. The Susquehanna (River) is full of water almost all year. They can take a lot of water out of it to frack wells without really affecting it that much, (but) they don’t want to contaminate it, (because) everyone depends on the surface water in that state. And conversely out in the (arid) West, you don’t want fracking operations to use a ton of water. You want them to be very efficient in a way you don’t care about in the East.

HCN: How should people determine if their state is stricter, or more lenient, on fracking?

NR: I think they should decide first what they’re worried about. So, are you worried about ground water, are you worried about surface water, are you worried about local air pollution or global warming? Then you can basically look at the maps that are relevant to that and just see how you’re doing relative to your neighbors.

I should have said at the beginning is that the maps are constantly being revised. So check up (on our latest maps) before you make too many quick judgments based on this because it’s possible your legislature is already acting.

More from Energy & Industry

One question that seems to me should be central to the debate over the regulation of fracking is: What is the proximity of the fracking to potable ground water? Oil and gas operations are generally much deeper than water. The proximity to water, quality of the water, local geology within the fracking zone, surrounding or adjacent geology both vertical and horizontal, may vary considerably over short distances and certainly within any regulatory jurisdiction.